Presentation Five: The Stages of Legal

Reasoning: Formalism, Analogy, and Realism

Wilson R. Huhn © 2013

Tonight’s Presentation, and How It Fits

The theory of The Five Types of Legal Argument that was described in Presentations One through Four is intensely practical for both the study and the practice of law. The theories on Formalism, Analogy and Realism as set forth in Presentation Five are of intellectual interest – a glimpse into the “deep structure” of legal reasoning.

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There Are Three Types of Legal Reasoning

1. Formalism

2. Analogy

3. Realism

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Why Are There Three Types of Legal Reasoning?

The three types of legal reasoning satisfy

the different requirements for a system of law.

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Three Requirements for Any System of Law

• The law must be logical in order to appeal

to reason • The law must be consistent in order to

satisfy our sense of fairness

• The law must reflect morality in order to command our obedience

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How the Three Types of Legal Reasoning Satisfy the

Requirements for a System of Law

• Formalism promotes objectivity and certainty in the law

• Analogy promotes consistency and coherence in the law

• Realism promotes flexibility and fairness in the law

I. THE USE AND LIMITS OF FORMALISM

(DEDUCTIVE LOGIC) IN LEGAL ANALYSIS

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Formalism

Formalism is the application of a rule

according to its terms to the facts of a case.

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Formalistic Reasoning Is Deductive Logic

Law aspires to be logical in form, and clear

rules lend themselves to logical application.

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What Formalists Believe

Formalists consider law to consist of rules –

the blackletter law. They believe that legal reasoning should be

purely logical. They believe that there are “right answers”

in the law.

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Cesare Beccaria and the Legal Syllogism

“In every criminal case, a judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law; and the conclusion, acquittal or condemnation.”

Cesare Beccaria (1738-1794)

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Structure of Legal Rules

All legal rules take this form: “If certain facts are true, then a certain legal

result applies.” EXAMPLE: “If a person purposefully and without

justification or excuse causes the death of another human being, then the person is guilty of murder.”

What is a Syllogism?

• A syllogism is an argument of deductive logic.

• A syllogism has four parts:

– Question – Minor Premise – Major Premise – Conclusion

Example of a Syllogism

Question: “Is Socrates mortal?” Minor Premise: “Socrates is a human being.” Major Premise: “All human beings are mortal.” Conclusion: “Socrates is mortal.”

The Brief of a Case Is a Syllogism

The four parts of a brief correspond precisely to the four parts of a syllogism: Issue ……………….. Question Facts ……………….. Minor Premise Law …………………. Major Premise Holding ……………... Holding

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The Brief of a Case Is an Argument of Deductive Logic

The brief of a case is an argument of deductive logic stated in categorical form – a “syllogism.”

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The Case of the Burglar and the Sleeping Homeowner

If a burglar breaks into a home, sees the

homeowner sleeping on the couch, and shoots the homeowner dead. If apprehended, we would no doubt charge the burglar guilty of murder. Murder is defined as the act of “purposefully causing the death of another human being without justification or excuse.

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Syllogism for the Burglar Case

Issue: Is the defendant guilty of murder? Facts: The defendant is a burglar who

intentionally killed a sleeping homeowner to reduce the risk of being caught.

Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder.

Holding: The defendant is guilty of murder.

The Battered Spouse Case

A woman was horribly abused by her husband for many years. One night he came home drunk, waving a gun and threatening to killer her. He then fell asleep on the couch. She picked up the gun and she shot him dead as he slept.

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Syllogism for the Battered Spouse Case

Issue: Is the defendant guilty of murder? Facts: The defendant is a woman who had been

horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch.

Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder.

Holding: ?

Questioning Premises

In any logical syllogism, you may attack the

major premise or the minor premise. In this case, the facts (the minor premise)

are not disputed. The law, however, is not clear.

Two Ways to Attack the Major Premise of a Legal Syllogism

• Questions of validity

– Is the major premise a correct statement of the law?

• Questions of ambiguity – Assuming that the statement of the law is

correct, are the terms contained in the rule clear or are they ambiguous?

Questions of Validity

Is this a correct statement of the law?: “A person who purposefully and without justification or excuses causes the death of another person is guilty of murder.”

Questions of Ambiguity

What do the terms “purposefully,” “justification,” and “excuse” mean in the context of this case?

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Purposefullness

Issue: Did the defendant act purposefully? Facts: The defendant is a woman who had

been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch.

Law: ? Holding: ?

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Justification

Issue: Did the defendant act in self-defense?

Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch.

Law: ? Holding: ?

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Excuse

Issue: Was the defendant legally insane when she killed her husband?

Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch.

Law: ? Holding: ?

The Reasoning in Judicial Opinions

Consists of Chains of Logical Syllogisms

Example: Marbury v. Madison

Syllogisms Puzzle

Place the following legal syllogisms from Marbury v. Madison in logical order.

Syllogism 1 Issue: Does the Supreme Court have original jurisdiction to issue a writ of mandamus to the Secretary of State? Fact: Section 13 of the Judiciary Act is not valid. Law: The Supreme Court may exercise jurisdiction to issue a writ of mandamus to the Secretary of State only if Section 13 of the Judiciary Act is valid. Holding: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State.

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Syllogism 2 Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13 of the Judiciary Act is in conflict with the Constitution. Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the Judiciary Act is not valid.

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Syllogism 3 Issue: Are statutes that are in conflict with the Constitution valid? Fact: The framers intended for any statute in conflict with the constitution to be invalid. Law: The constitution is to be interpreted according to the intent of the framers. Holding: Statutes that are in conflict with the Constitution are not valid.

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Syllogism 4 Issue: Is Section 13 of the Judiciary Act in conflict with the Constitution? Fact: Section 13 of the Judiciary Act grants the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, but Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States. Law: If one law permits what another law forbids, the laws are in conflict. Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution.

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Syllogism 5 Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case.

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Syllogism 6 Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States? Fact: Unless Article III, Section 2, Clause 2 of the Constitution is interpreted as prohibiting Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, the second sentence of Clause 2 would be rendered meaningless. Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Holding: Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States.

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Syllogism 7 Issue: Is the Constitution to be interpreted according to the intent of the Framers? Fact: The intent of the Framers in drafting the Constitution reflects the original will of the people. Law: The original will of the people determines the meaning of the Constitution. Holding: The Constitution is to be interpreted according to the intent of the Framers.

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The Key to Solving the Puzzle

The holding of a previous syllogism in the chain supplies the major or minor premise of the next syllogism in the chain.

The Relation Among Syllogisms 4, 3 and 2

Syllogism Two Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13 of the Judiciary Act is in conflict with the Constitution. Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the Judiciary Act is not valid. 38

Syllogism Four: Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution.

Syllogism Three: Holding: Statutes that are in conflict with the Constitution are not valid.

The Progression of Syllogisms from General to Specific

Base 7 3 Specific Premises 6 4 2 1 5 Result

F F 6H 4H L L F F F 2H 1H 5H F F L L L 7H 3H L L 40

The Final Syllogism Syllogism No. 5: Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case.

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The Initial Assumptions

Syllogism 6 Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Syllogism 7: Law: The original will of the people determines the meaning of the Constitution.

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But Law is Not Purely Logical In Marbury, Justice Marshall used a number

of other arguments, including policy arguments, to support the conclusion that the Court had the power to declare laws unconstitutional.

The Difference Between Easy Cases and Hard Cases

Easy cases may be solved formalistically, deductively, by applying a clear rule of law to unambiguous facts. (Burglar and sleeping homeowner case) Hard cases are cases where the validity or the meaning of the rule of law is in question. (Battered spouse case)

Why Are There Hard Cases?

It may not be clear what the rule of law applies. The applicable rule of law may be ambiguous. Different types of legal arguments may yield different answers as to what the law is The resolution of the case may depend upon identifying the different values that are at stake and balancing these competing policy goals

Legal Reasoning is Logical in Form, but Evaluative in Substance

“In form, the growth of the law is logical …. On the other hand, in substance the growth of the law … is in fact and at bottom the result of more or less definitely understood views of public policy.”

Oliver Wendell Holmes

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Stage Theory of Legal Reasoning

In hard cases, courts proceed from

formalism, to analogy, to realism, in order to resolve the case.

II. FORMALISM, ANALOGY, AND REALISM IN LEGAL

ANALYSIS

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Analogy

Analogy is the application of a rule to a case

because the facts of the case are similar to the fact portion of the rule.

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Edward Levi on Reasoning by Analogy

“The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process ….”

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Levi – The Three Steps of Legal Analogies

“The steps are these: similarity is seen

between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.”

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Three Gestational Surrogacy Cases

1. In re Baby M (Formalism) 2. Johnson v. Calvert (Analogy) 3. Buzzanca v. Buzzanca (Realism)

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1. The Baby M. Case

Facts: In this case, because Mrs. Stern was unable to conceive, Mr. Stern impregnated another woman, Mary Beth Whitehead, who had agreed to serve as a “surrogate” and to give up the child to the couple. After Mrs. Whitehead gave birth she changed her mind and attempted to keep the child, claiming that she was the child’s mother under the law.

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Formalist Analysis in Baby M.

Issue: Is Mrs. Whitehead the lawful mother of the child?

Facts: Mrs. Whitehead gave birth to the child.

Law: A woman who gives birth to a child is the lawful mother of the child.

Holding: Mrs. Whitehead is the lawful mother of the child.

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2. Johnson v. Calvert

Facts: A married couple, Mark and Crispina Calvert, could produce gametes but Mrs. Calvert could not carry a pregnancy. An embryo was created from their egg and sperm, and the couple entered into a contract with Mrs. Johnson and her husband for the embryo to be implanted into Mrs. Johnson and for her to carry the child to term and to give the child to the Calverts. Upon the birth of the child, Mrs. Johnson changed her mind, and sought to keep the child.

Issue: Who is the mother in the eyes of the law?

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Formalism

Based upon the rule that “The woman who

gives birth to a child is the lawful mother of the child,” the formalist analysis would still find that Mrs. Johnson is the lawful mother of the child.

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But …

If you find the formalist analysis

unsatisfactory because the people who drafted the rule did not intend for it to apply to a case of gestational surrogacy, then you might look for other rules of law that you could apply by analogy …

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Reasoning by Analogy

We could draw an analogy to the law of contract

We could draw an analogy to adoption law. We could draw an analogy to constitutional

law

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Analogy to the Law of Contract

Is the surrogacy contract more like a contract for the sale of goods or a contract for the sale of services?

• If it is a sale of goods then the contract is invalid because babyselling is illegal.

• If it is a sale of services then it can be argued that the sale of pregnancy services is lawful.

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Analogy to Adoption Law Is the arrangement between the surrogate and the

married couple more like a private adoption or more like foster parenthood?

• If it is more like an adoption then the arrangement is illegal, because the birth mother must be given a chance to refuse to give up her child following birth

• If it is more like foster parenthood, then the child’s real parents may demand the return of the child

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Analogy to Constitutional Law

Is the work of serving as a gestational surrogacy more like prostitution or slavery or is it simply a legitimate job?

• If it is more like prostitution or slavery (forms of exploitation) then the government can prohibit contracts regarding the practice.

• If it is a legitimate service, then women and couples should have the right to enter into these arrangements and they should be enforced.

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Result in Johnson v. Calvert

The court found that the surrogacy

agreement was not a contract for the sale of a baby but rather was a contract for the sale of gestational services, and it enforced the agreement.

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Realism

Realism is the development of a new rule of

law by balancing all of the relevant interests and values that are at stake.

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The Two-Part Structure of Policy Arguments

• Predictive statement of fact – what

consequences will flow from the particular interpretation of the law?

• Evaluative judgment – are those consequences consistent with the underlying purposes of the law?

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3. Buzzanca v. Buzzanca Luanne and John Buzzanca were both infertile. They

entered into agreements with an egg donor and a sperm donor and a gestational surrogate to have the donated embryo, genetically unrelated to either of them, implanted into a gestational surrogate. John filed for divorce one month before the child (Jaycee) was born. In the divorce case, he claimed that he and Luanne were not Jaycee's legal parents, while Luanne contended that they were the legal parents. The surrogate who bore Jaycee delivered her to Luanne and made no claim of parentage.

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Formalist Analysis in Buzzanca

The trial court used formalist analysis and yet made an unprecedented decision – he ruled that Jaycee was born without legal parents. In finding that Luanne was not the lawful mother, the court stated:

“One, there's no genetic tie between Luanne and

the child. Two, she is not the gestational mother. Three, she has not adopted the child. That, folks, to me, respectfully, is clear and convincing evidence that she's not the legal mother.”

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Analogical Reasoning in Buzzanca

The appellate court reviewed several of the analogies that had been used in Johnson v. Calvert, but found that they were not applicable because there was no genetic relation between the wife and the child in this case. It did find an analogy that it thought appropriate – because the husband had consented to the creation of the embryo, it found this case analogous to a husband’s consent to artificial insemination by donor (AID) of his wife, and ruled that John and Luanne were Jaycee’s lawful parents.

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But …

If you find that none of the analogies to other

cases is particularly persuasive, then you might find it necessary to develop a new rule of law …

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Realist Analysis

Using realism, a court balances all of the

relevant values and interests that are at stake in developing a new rule of law and arriving at a conclusion.

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Values to Be Considered in Developing a Parentage Rule for

Gestational Surrogacy Cases • Protecting the intentions of the parties to a

contract or their consent to a procedure • Guarding against the exploitation of women’s

bodies • Establishing certainty in the law of parentage • Preserving the opportunity for infertile couples to

procreate • Protecting the rights of birth mothers and genetic

parents • Protecting the best interests of children • Protecting the rights of women to work

How Were the Foregoing Values Discovered?

In the course of searching for analogous cases – cases that have similar facts or cases that involve a similar constellation of values – we will identify the values that are at stake in the case at hand.

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Progression from Formalism, to Analogy, to Realism

• Easy cases can be resolved formalistically, by the application of an existing rule according to its terms.

• In harder cases, where existing rules do not literally apply, an existing rule may be applied by analogy.

• In the hardest cases, where no existing rules apply according to their terms or by analogy, a new rule must be developed.

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Analogy is the Bridge Between Formalism and Realism

• In the easiest cases, courts use formalism – applying

rules according to their terms. • In somewhat harder cases, courts use formalist

analogies – applying the rules of cases which are very similar on the facts.

• In still harder cases, courts draw realist analogies to cases which have similar values and interests at stake – applying the rules of those cases to the case to be decided.

• In the hardest cases of all, courts balance all of the relevant values and interests identified in the previous stage to develop a new rule to decide the case.

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The Stages of Legal Reasoning in Progressively Harder Cases

Formalism Formalist Analogies Realist Analogies Realism

III. Lessons from the Field of Developmental Psychology

Developmental psychologists have observed the same progression from formalism, to analogy, to realism in the cognitive and moral capacity of the human being.

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Ernst Haeckel

Ontogeny recapitulates phylogeny The physical development of the individual goes through the same stages as the development of the species.

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G. Stanley Hall

The psychological and social development of the individual retraces the development of the human species.

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James Mark Baldwin

Assimilation and Accommodation

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Assimilation and Accommodation

Assimilation involves the person’s dealing

with the environment in terms of his structures, while accommodation involves the transformation of his structures in response to the environment.

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Jean Piaget

Stages of Cognitive Development

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Piaget’s Stages of Cognitive Development

• Sensorimotor Period (birth – 2 years) • Preoperational Period (2 – 7) • Concrete Operational Period (7 – 12) • Formal Operational Period (after 12)

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Reasoning by Analogy Appears to Bridge Concrete Operations and

Formal Operations

• At about age 9, children learn to draw concrete analogies between physical objects

• At about age 11, children learn to draw abstract analogies between physical objects

• At about age 13, children learn to draw abstract analogies between abstract concepts

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Concrete Analogy Between Physical Objects

Ink is to pen as paint is to ________ color spray brush paper

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Abstract Analogy Between Physical Objects

Food is to body as water is to ______ storm coat ground

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Abstract Analogy Between Abstract Objects

Task is to ____________ as problem is to

solution. attempt completion work end question

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Laurence Kohlberg

Stages of Moral Development

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Kohlberg’s Stages of Moral Development

• Preconventional Thought (sensorimotor and preoperational period) – Person learns to obey rules – Stage 1 - Pleasure seeking, responds to reward or punishment

• Toddler or criminal mentality – Stage 2 - Concept of bargain

• Deal, reciprocal obligation • Conventional Thought (period of concrete operations)

– Person acquires the concept of “duty” – Stage 3 - Follows rules to gain love and acceptance and avoid guilt

• “good boy,” “nice girl” – Stage 4 - Follows rules because of sense of group identity

• “good citizen” • Postconventional Thought (period of formal operations)

– Stages 5 and 6 – Person can evaluate the fairness of rules based on considerations of consequences and application of universal precepts

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Carol Gilligan’s Critique of Kohlberg’s Theory

Gilligan contends that Kohlberg missed “the heart” of moral reasoning.

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Carol Gilligan’s Ethic of Care

Gilligan characterized difficult moral

questions as arising from conflicting duties or responsibilities to others, rather than purely intellectual puzzles

Gilligan’s followers believe that moral

development depends on developing the capacity for empathy

Ontogeny Recapitulates Phylogeny

Ernst Haeckel’s insight into embryology stimulated the science of child development. The development of reasoning powers in the individual also follows this path – from formalism, to analogy, to realism

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The Stages of Legal Reasoning in Progressively Harder Cases

Formalism Formalist Analogies Realist Analogies Realism

IV. THE STAGES OF LEGAL REASONING IN THE

EVOLUTION OF RULES AND STANDARDS

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Rule: “Drive at the Posted Speed Limit”

Rules are clear, arbitrary, and are applied formalistically.

To apply a rule, we simply ask what are the facts, and does the rule apply to the facts?

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Standards “Proceed cautiously on yellow light”

Standards are ambiguous, fair, and are applied realistically. To apply a standard, we must ask what are the facts, what are the underlying values and interests to be considered, and how are those values and interests involved in the case to be decided?

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Evolution of a Rule into a Standard

Rules evolve into standards as the courts

recognize exceptions to a rule. As exceptions accumulate, the courts may recognize an underlying policy that determines whether to recognize the exception to the rule. Eventually, it is easier to state the law in terms of the standard rather than in terms of the rule and its many exceptions.

Example of a Rule Turning into a Standard

Imagine yourself as a judge in traffic court for 20 years. Over that time, you have tried thousands of cases. In many of those cases people had good excuses for exceeding the posted speed limit – taking an injured relative to the hospital, or you are being chased by a dangerous criminal. You will have developed a standard that people should obey the posted speed limit except in emergencies where speed is essential. Because of the similarities among the underlying reasons (values) justifying these exceptions, a rule will evolve into a standard. 96

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Evolution of a Standard into a Rule

Standards evolve into rules as the courts

acquire experience interpreting the standard. Factual similarities between the cases applying the standard may allow the law to be articulated in terms of a rule.

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Example of Standard Evolving Into a Rule

Imagine yourself again as a long-time judge in

traffic court, and the applicable law is a standard that “Automobiles may proceed at a reasonable rate of speed.” After thousands of cases you will know that in good weather a reasonable rate of speed on country roads is between 40 and 55 miles per hour.

Because of the factual similarities among the various applications of the standard, a standard will evolve into a set of rules.

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Another Example of a Standard Evolving Into a Rule

Congress adopted the residual exception to the rule against hearsay in Rule 807, admitting statements which have “equivalent circumstantial guarantees of trustworthiness” as the other hearsay exceptions and which are more probative of a material fact than any other evidence. As the courts interpret this standard, there may emerge factual similarities in cases where the residual exception is recognized, such as the admission of grand jury testimony in certain circumstances. At some point in time, it may be easier to express the law in terms of rules rather than as a standard.

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Analogy is the Bridge Between Formalism and Realism

• As rules evolve into standards, the courts

draw realist analogies among all of the cases making exceptions to the rules.

• As standards evolve into rules, the courts draw formalist analogies among all of the cases applying the standards.

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Realist Analogies and Formalist Analogies Help the Law to Evolve

• Cases creating exceptions to rules Standards

• Cases interpreting standards Rules

Formalist Analogies

Realist Analogies

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Why Are There Three Stages of Legal Reasoning?

• Formalism promotes objectivity and

certainty in the law • Analogy promotes consistency and

coherence in the law • Realism promotes flexibility and fairness in

the law

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Not Hierarchical Stages, But Stages of a Cycle

Formalism

Analogy Realism

END

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